These words of reprimand were imposed upon an Army lieutenant colonel by the Commanding General, Sixth U. S. Army, on 21 February 1956.
Considerable concern arose in the minds of many military officers of the United States who read the General’s words. Questions of unsure loyalty, divided loyalty, and the meaning of an officer’s oath were voiced by commissioned officers, many of whom had never been reminded, in training, of an officer’s oath, nor heard a discussion of its meaning.
It is the primary purpose of this article, then, to put in proper perspective the preparation needed to educate commissioned officers regarding an officer’s oath so that they may be prepared to say: “Where’s the coward that would not dare to fight for such a land?” instead of: “Dear friends, we, all prisoners, solidly appeal to you as follows: the armed intervention in Korean internal affairs is quite a barbaristic, aggressive action to protect the benefit of the capital monopolists of the U.S.A.”
The framers of the Constitution, when they drafted Article VI, Clause 3, made clear that the officers mentioned therein would be required to take an oath of allegiance to support the Constitution. They prescribed: “ . . . all executive . . . officers ... of the United States . . . shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.” The Acts of the First Congress of the United States prescribed the form of oath or affirmation to be administered not only to the members of the Senate and the House of Representatives but also to all executive officers of the United States appointed or to be appointed before they acted in their official capacity. The Act of 1 June 1789, reads: “I, A.B., do solemnly swear or affirm [as the case may be] that I will support the Constitution of the United States.”
This same oath was again enacted by the Congress on 29 September 1789.
On 13 May 1884, the Congress enacted the oath which is still taken by every officer—be he regular or reservist—of the U. S. Armed Forces: “I, A.B., do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Mr. Justice Brewer of the U. S. Supreme Court enunciated the importance of the officer’s oath when he stated, “the taking of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier.”
Beyond any reasonable doubt, then, the first allegiance of anyone who professes to be an American is to the Constitution of the United States.
Has this always been the view of all Americans?
Divided loyalty—the state versus the federal government.
While the inaugural address was being delivered [in Washington, D. C.] and devoted altogether to saving the Union without war, insurgent agents were . . . seeking to destroy it without war—seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came.1
From the original colonies, and the maritime endeavors and militia organizations thereof, the Armed Forces of the United States were born. A regular establishment has existed since 14 June 1775, and, in time of need, volunteers or draftees from civilian life have supplied its manpower. But Americans have never been enthusiastic in their attitude toward the Armed Forces. The consensus was that any American desiring military service could join the state militia and serve not only his country but his state as well. George Washington and others had constantly complained that men thus preferred to serve in organizations that were less efficient than the continental line regiments.
Finally, the voices of preparedness were heard. In 1802, the U. S. Military Academy became a reality, and from this educational institution from that time until after World War I came the officers of the Regular Army. Generally, they were a dedicated, professionally efficient, honest, and loyal group of Americans who served with distinction, valor, and loyalty throughout the War of 1812, the Indian Wars, the Mexican War, and the periods of peace that intervened. Still, civilian leaders of government, and the nation generally, because of the success of our arms during these times failed to recognize, until it was too late, that soldiers, too, were subject to the same loyalty to both their state and the federal government as were their civilian counterparts.
The Civil War disclosed that the national military class, while possessed of a fine standard of professional competence, had not been endowed with the love of nationalism when it was opposed by sectionalism.
Records reveal that the Confederate States of America during 1861-1865 commissioned 460 general officers of whom 181 (39.3 per cent) had been officers of the U. S. Army and that, after 1 November 1860, 286 officers of the U. S. Army left the service and joined the Confederacy. Of the latter group, 187 (65.3 per cent) were graduates of the U. S. Military Academy.
Clearly, it would be impossible to discuss the reasons behind the choice made by each of the officers concerned. Yet, while all must have faced the problem presented with a tragic sense of duty, two Army officers— Virginians both—were destined for a particular place in the history of America.
Robert Edward Lee and George Henry Thomas were of nearly the same cultural background. Each had been formally educated in the U. S. Military Academy. Lee had been the ninth superintendent of the Military Academy and had had Thomas on the academic staff as an instructor of artillery and cavalry. Later they served together in the 2d Cavalry Regiment where Lee was initially the executive officer and Thomas commanded a squadron.
Two southern gentlemen bound by tradition and association with families and friends, state and section, education, office, duty, honor, and country and with sworn allegiance to the flag thereof came to the fateful day of decision. Where do I go? With my native state or the federal government?
Colonel Lee made the decision first. He was in Texas when he declared, unofficially, his allegiance to his state. Having completed a reading of General Winfield Scott’s paper, “Views Suggested by the Imminent Danger, October 29, 1860, of a Disruption of the Union by the Secession of One or More of the Southern States,” Colonel Lee had a conversation with Charles Anderson and Doctor Willis G. Edwards. It was during this conversation that Doctor Edwards posed the question of whether a “man’s first allegiance was due his state or the nation.” Lee’s courteous reticence vanished. Instantly, he spoke out, and unequivocally. He had been taught to believe, he said, and he did believe, that his first obligations were to Virginia. He so viewed his obligations despite letters probably to his son Custis wherein the thoughts were expressed that the preservation of the Union was the only hope and should be clung to until the very end, for secession was nothing but revolution.
. . . Still a Union that can only be maintained by swords and bayonets, and in which strife and civil war are to take the place of brotherly love and kindness has no charm for me. I shall mourn for my country and for the welfare and progress of mankind. If the Union is dissolved, and the Government disrupted, I shall return to my native state and share the miseries of my people, and save in defense will draw my sword on none.
These were Colonel Lee’s principles and these he followed. On 20 April 1861, after long talks with Francis Preston Blair, who had been authorized by President Lincoln to “ascertain Lee’s feelings and intentions,” and General Scott, Lee wrote two letters: one— his one-sentence letter of resignation—was to the Union Secretary of War, the Honorable Simeon Cameron, and the other was to his cousin, Roger Jones, who was then a U. S. Army officer.
To his cousin he wrote: “My dear cousin Roger, I only received today your letter of the 17th. Sympathizing with you in the troubles that are pressing so heavily on your beloved country, I entirely agree with you in your notions of allegiance. I have been unable to make up my mind to raise my hand against my native State, my relatives, my children, my home. I never desire again to draw any sword save in the defense of my State. I consider it useless to go into reasons that influenced me. I can give you no advice. I merely tell you what I have done that you may do better ...”
What did Lee mean when he wrote: “I merely tell you what I have done that you may do better?” Research has not disclosed the answer; the reader himself must decide.
Fort Sumter fell, Virginia seceded, and Mr. Lee, “The Gray Fox,” went South.
Meanwhile, Lee’s good friend, Major George H. Thomas, came to grips with his problem.
Leaving Texas, on the second leave of absence he had taken in 20 years of service, he took with him his slave woman because he could not force himself to sell another human being. George H. Thomas would undoubtedly have claimed, if questioned, that the U. S. Constitution recognized slavery.
Reaching Virginia, Thomas left the slave woman at his home and proceeded north to Washington and then to New York. While there during March 1861, he received a letter from a friend of Governor John Lechter of Virginia, who was stationed at the Virginia Military Institute, wherein two questions were posed to Thomas: would he resign from Federal Service, and, if so, would the position of Chief of Ordnance of the State of Virginia, be acceptable?
Major Thomas, on 12 March 1861, answered directly to Governor Lechter as follows: “I have the honor to state, after expressing my most sincere thanks for your kind offer, that it is not my wish to leave the service of the United States as long as it is honorable for me to remain in it, and, therefore, as long as my native State remains in the Union, it is my purpose to remain in the army, unless required to perform duties alike repulsive to honor and humanity.”
On 10 April, Major Thomas received orders to proceed to Carlisle Barracks, Pennsylvania, to reorganize and equip the 2d Calvalry Regiment. In complying with these orders he took a train to Carlisle, and while en route he heard of the attack on Fort Sumter. Arriving at Carlisle, Thomas wrote his wife, stating that, whichever way he turned the matter over in his mind, his oath of allegiance to his government “always came uppermost.” He then wrote of his decision to his sisters, Judith and Fanny Thomas, and the aftermath was legend.
His sisters refused to acknowledge his existence or permit his name to be mentioned in their presence. They never answered this letter and cut the tie of friendship and blood, to the extent that after the war they told Union officers that they had no brother. Judith and Fanny turned his picture to face the wall, destroyed his letters, and wrote him one letter requesting that he change his name.
George H. Thomas was a Federal. To many, Robert Edward Lee went South a noble man who chose wisely, while George Henry Thomas was classified a traitor by his family— with one exception, his brother Benjamin. He was also viewed with mistrust by northern authorities. Legend has it that Mr. Lincoln appointed him a brigadier general with great reluctance and only after going to the Willard Hotel to discuss the appointment with Brigadier General Robert Anderson and General William T. Sherman. Sherman in his Memoirs states: “ . . . General Anderson had some difficulty in prevailing on [Mr. Lincoln] to appoint George H. Thomas, a native of Virginia, to be brigadier general, because so many Southern officers had already played false; but I was still more emphatic in my indorsement of him by reason of my talk with him at the time he crossed the Potomac with Patterson’s Army, when Mr. Lincoln promised to appoint him and to assign him to duty with General Anderson.” The appointment was made, effective 24 August 1861.
Regarding the allegiance of Robert E. Lee, however, Mr. Lincoln had not the slightest doubt, for he wrote, on 12 June 1863, “Erastus Corning and Others,” in part as follows: “ . . . Gen. Robert E. Lee [and other general officers of the Confederacy] now occupying the very highest places in the rebel war service, were all within the power of the government since the rebellion began, and were nearly as well known to be traitors then as now.”
After the War Between the States had ended, President Andrew Johnson issued his amnesty proclamation of 29 May, which offered to all—except 14 specified groups of Confederates—amnesty and pardon if they would take a specified oath to support the Constitution and laws of the United States. Every man who took the oath was to be restored to full property rights, other than in slaves. Those, like General Lee, who were in one of the 14 excepted classes were given the privilege “to make special application for individual pardon with the assurance that ‘clemency will be liberally extended as may be consistent with the facts of the case, and the peace and dignity of the United States.’ ”
Having faith in the expressed intentions of President Johnson, and despite his indictment, on 7 June 1865 for treason against the United States by a grand jury, General Lee, through General U. S. Grant, sent an application for pardon to the President of the United States on 13 June 1865.
General Grant recommended “that Lee’s application for amnesty and pardon be allowed,” but the individual pardon was never granted. On 15 February 1869, it was made a matter of record that no further action would be taken in the treason indictment against General Robert E. Lee.
Was divided loyalty now laid to rest for the military officers of the United States of America? No, The problem was only to become more sophisticated and a great deal less apparent to the casual observer.
Divided loyalty—the Constitution versus the Commander-in-Chief.
I swear by God this sacred oath, that I will render unconditional obedience to Adolf Hitler, the Fuehrer of the German Reich and people. Supreme Commander of the Armed Forces, and will be ready as a brave soldier to risk my life at any time for this oath.
On 2 August 1934, the Officer Corps of the German Armed Forces took a new oath of allegiance. It was an oath, not to their country, not to the constitution of their country, but to an individual who had become the head of their nation.
An International Military Tribunal, convened in 1947, spoke of the German officer corps of 1934-1945 in words that are not pleasant, for it is plain beyond cavil that: “They have been responsible in large measure for the miseries and suffering that have fallen on millions of men, women, and children. They have been a disgrace to the honorable profession of arms.”
To assure that no International Tribunal, be it military or civilian, says the same of the military officers of the United States of America it is incumbent upon each and every American officer to be constantly aware of his oath of allegiance to support and defend the Constitution of the United States.
But what does this mean, and how can it be accomplished?
The basis of the requirement for an oath of allegiance must be sought in law, for it is implied by the organic law of the land, the Constitution of the United States of America, which, in the words of Mr. Justice Stone we must read “ ... as a continuing instrument of government.”
But, what does the Constitution have to do with an officer’s oath?
In feudal times it was the lot of the vassal to render unto the lord of the land all services —services founded on the right to govern and the duty to obey. The bond was broken only by death. Thus, the allegiance of the vassal was to the land, for allegiance ran with the land forever. The same was true of fealty to the king.
The American colonies were formed, and for many years in this new land each of our forefathers maintained allegiance to the King of England, because each had been born subject to his jurisdiction. Then, in 1776, these colonies dared to become free and independent states, and the theory of enduring allegiance was cast adrift. The Declaration of Independence proclaimed “. . . governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
Our forefathers were saying that the power of government is ultimately in the people; for only the people, if such government becomes destructive of its ends, can alter or abolish the government that they have created.
A constitutional form of government was created in order to safeguard the powers which by nature they possessed. It is this Constitution which is the framework which limits the scope and authority of any officer of the government who purports to derive his authority therefrom. But what would be the consequences if those who derive their authority from the Constitution to direct the military forces of the country step outside the limiting bounds of their Constitutional authority?
An American general—Douglas MacArthur —returning from Korea in 1951, stated this problem:
I find in existence a new and heretofore unknown and dangerous concept that the members of our armed forces owe primary allegiance or loyalty to those who temporarily exercise the authority of the executive branch of the government, rather than to the country and its Constitution which they are sworn to defend.
No proposition could be more dangerous. None could cast greater doubt upon the integrity of the armed services.
For its application would at once convert them from their traditional and constitutional role as the instrument for the defense of the Republic into something partaking of the nature of a pretorian guard, owing sole allegiance to the political master of the hour.
It has been asserted that “the philosophy and logic behind this statement will not stand up under close analysis.” Others—for example, Professor Morris Janowitz—do not agree, however.
Professor Janowitz has written:
Personal allegiance, as a component of honor, has had to be changed to fit the growth of bureaucratic organizations. The American constitutional system, in order to assure civil supremacy, requires that the military swear allegiance to “support and defend the constitution.” The organic law has transformed allegiance to a person to allegiance to a formal position—moreover one filled by a civilian— the President, as Commander-in-Chief. Military officers make a point of their allegiance to the Commander-in-Chief, and this act embodies allegiance to a person as well as to an office.
If Professor Janowitz is correct in his analysis, the statement by General MacArthur is of great moment.
While the Janowitz theory may be accepted by some of the officer corps, the majority of officers have not, in my opinion, abrogated their sworn oath to the Constitution. This I believe even Professor Janowitz must recognize, for his last two sentences in the above quote are inconsistent. If the Janowitz proposition is correct, however, American officers, like the Nazi officers of 1934 would, to all intents and purposes, be swearing allegiance to an individual who had become for the moment the President of the United States of America. This theory of abrogation of fealty to an individual is perhaps supportable in the world of fiction, for a few officers. In reality, however, the fictional theory is unacceptable, for the officer corps of the Armed Forces of the United States has accepted, as the yardstick of fealty, the Constitution of the United States of America. So that I am not misunderstood, however, let me add that, in my opinion, the officer corps, in the main, fully realizes that their exclusive responsibility is to the President, as Commander-in-Chief, for the successful operation of the Armed Forces in peace or in the spectrum of war be it cold, limited, or general. The President, by reason of the Constitution, commands the nation’s forces, and the doctrine of command is accepted by the military. Additionally, the officer corps of the Armed Forces realizes the responsibility that devolves upon the Commander-in-Chief to achieve the national objectives and purposes of the United States. As President Dwight D. Eisenhower once remarked: “ . . . Give military leaders a lucid explanation of the nation’s policies, and they will, with rare, and easily controlled exceptions, loyally perform.”
But what is the situation if this explanation is not lucid or in any sense satisfying? As the officer has taken an oath to defend the Constitution, he must permit the Constitution with its provided checks and balances to operate. Under these provisions the Congress and the courts, not the military, are given the authority to review the acts of the President.
However, while awaiting the action of the courts, which oftentimes is slow, the officer concerned may find himself obliged to commit certain acts which he might later have to personally justify before a court of law.
In 1803, John Marshall speaking in the now famous case of Marbury v. Madison stated: “It is emphatically, the province and duty of the judicial department to say what the law is.” Then, in Sterling v. Constantin, Mr. Chief Justice Charles Evans Hughes remarked: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial decisions.” And further, “There is no . . . avenue of escape from the paramount authority of the federal Constitution.”
Accordingly, the military officer like his civilian counterpart, is accountable to the law as it is judicially determined to be. Perhaps it has been most clearly stated by Mr. Justice Miller in United States v. Lee:
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.
It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
Professor Charles Fairman of the Law School of Harvard University in a study concerned with the problems of government after an atomic attack considered, among others, the three cases just mentioned, and with regard to the question of judicial review in wartime he said:
A commander who understands that it may be his duty to break the law, looking for justification to the political judgment of his contemporaries, is likely to be a reckless and arbitrary man. It sounds like Caesar who, seeking to keep within the constitution while fearful of prosecution on a charge of unconstitutional acts, finally crossed the Rubicon, and looked to his contemporaries and to history. That is wholly foreign to our notions.
As the powers granted to the Congress and the President of the United States to wage war or maintain peace are Constitutional grants, the actions of officers of the Armed Forces of this country must be in conformity with the Constitution. This, standing alone, is a truism. The problem is that conformity or nonconformity with the provisions of the Constitution is determined after the act by the courts and not the executive authorities who may have ordered the act.
In summary, the yardstick for measuring one’s allegiance is the Constitution as interpreted by the courts.
While the Constitution solves problems involving divided loyalty on the national level, does it do so in the international sphere?
Divided loyalty—national versus international military command. Certain problems of great magnitude loom in the future for international military commands. For example, suppose that a United Nations military force was created and that an officer of the Armed Forces of the United States was assigned to duty with such force. To whom would he owe basic allegiance—the United States or the United Nations?
Allegiance is normally defined in terms of the bond of duty and fealty which binds an individual to his nation or government and which in turn confers upon him the status of a national. The Harvard Law School research draft on The Law of Nationality defines in Article 1(a) nationality as “the status of a natural person who is attached to a state by the tie of allegiance.” It may be said then that the “tie of allegiance” marks the sum of the binding requirements of a natural person to the state of which he is a member. This same approach has been taken in the jurisprudence of our own courts—Mr. Justice Van Devanter speaking for the U. S. Supreme Court said: “Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being compensation for the other.”
Accordingly, allegiance traditionally has been linked solely with the ties of nationality. In such a tradition, allegiance could have no application to the relationship between individuals and international organizations. There could be no conflicts of allegiance in the traditional sense.
In reality, however, there could be conflicts of interests between the policies of the international command and the policies of an officer’s own country. Suppose that the U. S. officer mentioned above is the commander of the force. Could he face a conflict of interest between the United Nations and the United States? This conflict could arise because international organizations, such as the United Nations, though created by their member-states, lead lives of their own. The result is that the member-states continue to exist as they did before the creation of the international organization. However, it is now obvious that such states exist alongside a new legal personality and that the judgments of this new personality, as to the actions it should take, need not always coincide with the judgment of all of its members. For example, military actions undertaken by the United Nations with no original objection by the United States may develop new and unforeseen difficulties and complications, especially if the General Assembly were to recommend military action, for such action is not subject to the veto power.
A Department of the Army publication concerning civil affairs operations, contains this quotation: “. . . he [the United States commander serving under a combined command] brings to the attention of appropriate authority those policies or actions in the field of CA [civil affairs] operations that are believed to be contrary or prejudicial to international law, United States law, United States national interest, United States war objectives, or the postwar international position of the United States.”
This policy though expressly applicable only to civil affairs operations is useful in any conflict of interest situation that may be faced by the U. S. commander. The U. S. commander under these circumstances need not take any action contrary to that taken by the combined command. Therefore, loyalty to the combined command is not breeched and, likewise, loyalty to the United States is not violated if the commander notifies appropriate U. S. authority that in his judgment certain actions of the combined command are against the interests of the United States. In the latter situation, appropriate United States authority can take whatever action is deemed appropriate under the circumstances—this might perhaps include the recall of the commander if it were felt that he might become involved in an action incompatible with the interests of the United States.
The Regulations for the United Nations Emergency Force, issued by the Secretary General of the United Nations on 20 February 1957, do not speak of allegiance or call for any oath couched in such terms. The regulations do emphasize the international chain of command and certain obligations the members of this force bear to it alone. Paragraph 31 thereof provides: “Instructions. In the performance of their duties for the Force the members of the Force shall receive their instructions only from the Commander and the chain of command designated by him.” Paragraph 32 of the same Regulations discusses discretion of the noncommunication of information in these words: “Members of the Force shall exercise the utmost discretion in regard to all matters relating to their duties and functions. They shall not communicate to any person any information known to them by reason of their position with the Force which has not been made public, except in the course of their duties or by authorization of the Commander. The obligations of this Regulation do not cease upon the termination of their assignment with the force.”
The President of the United States may not have the power as Commander-in-Chief of the Armed Forces of the United States to dictate the conduct of an American officer in his capacity as a member of an international command. But, he does have the power of recall. Therefore, any American officer in such a command who has difficulty with his oath as an officer conflicting with his duties as an international commander may have such difficulty resolved by the President. Undoubtedly, withdrawal would be the proper step, rather than to leave him in a position where he may have to violate his oath.
Although control by the Executive of an American international commander is fairly clear, there appears as yet to be no control by our courts over such a commander. In 1949, Mr. Justice William O. Douglas, U. S. Supreme Court, made the following observation in an opinion concerning the apparent lack of the courts’ power to review certain judicial acts of General MacArthur, Supreme Allied Commander:
Such a holding would have grave and alarming consequences. Today Japanese war lords appeal to this Court for application of American standards of justice. Tomorrow or next year an American citizen may stand condemned in Germany or Japan by a military court or commission. (Cases of this sort are beginning to appear—see In re Buck, 336 U. S. 971.) If no United States court can inquire into the lawfulness of his detention, the military have acquired contrary to our traditions (see Ex Parte Quirin, 317 U. S. 1; In re Yamashita, 327 U. S. 1), a new and alarming hold on us. . . .
It leaves practically no room for judicial scrutiny of this new type of military tribunal which is evolving. It leaves the powers of those tribunals absolute. Prisoners held under its mandates may have appeal to the conscience or mercy of an executive; but they apparently have no appeal to law.
The present state of the law would appear to be that if an officer of the Armed Forces of the United States violated, as an international commander, that portion of his oath about supporting and defending the Constitution, the courts are powerless. This, of course, raises the question: May an American officer do something as an international commander that he could not do as a national commander? It was pointed out above that our courts may hold a military officer accountable for what he does as a national commander. Here now, it is apparent that the courts, as yet, have no such complete control over him as an international commander. If the question were to be answered in the affirmative, it would appear that as an international commander he possibly would not be violating his oath taken as a national commander, for his oath to support the Constitution may be applicable only when he acts as a national commander.
Stated another way, the
. . . officer who becomes a permanent employee of the United Nations owes basic allegiance to it rather than to his native country.
This rule would not apply, of course, to contingents temporarily given to the United Nations for short-term tasks. Consequently, the contingents operating in Korea, the Congo or Egypt would not fall under this particular rule. But even in the Congo and Egypt, the officers who operate as the members of the UN command apart from national contingents are truly international officials having both the duties and privileges of such officials and consequently should owe their primary allegiance to the United Nations.2
Some perhaps will say the international commander has new duties, new responsibilities, and new loyalities, and the national commander old duties, old responsibilities, and old loyalties. Obviously, when given such an assignment any individual is put in the unenviable position of possibly betraying the interest of one command or the other, regardless of the decision he makes. Of course, it is realized that if a commander was wearing two hats, as Generals Eisenhower, MacArthur, and Norstad have done, it would depend upon which hat he was wearing when he acted.
Faced with such a decision, pertinent legal principles are in the very early stage of development and now contribute little, if anything, to aid in the final decision. As Mr. Justice Douglas said: “ . . . collaboration among nations at the international level . . . pose(s) questions for which there is no precedent.”
The final determination rests with each individual as he answers the question which each contending force will put to him—questions faced in a different context by Lee and Thomas 100 years ago—-“Are you with us or against us”? Where is your first loyalty?
The question of loyalties, whether they be unsure or divided, has and will continue to be the concern of any American officer who respects the honor of his oath. What conclusions can be formulated from the problems discussed in this study which may serve as a guide for him?
President Harry S. Truman has stated: “I just happen to think that the Constitution has served us pretty well for all these years.” But what of tomorrow? Exploration of space, satellites, social revolutions, drastic shifts in the international power complex, and the invention of undreamed-of weapons will usher in staggering and revolutionary changes.
Questions of great importance will arise of which international commands are but one. We can of a surety expect situations in the future that will cause officers serious soul searching and inner conflicts as severe as those faced by other officers in the past. Will each of us be ready for this inner struggle?
As we ponder the question, there is mounting evidence that we need not despair for the future of the officer corps. The American officer captives of pro-Communist forces in Laos have set a high standard for the corps. Major Lawrence Bailey of Laurel, Maryland, and Captain Walter Moon of Rudy, Arkansas, were not found wanting for their creed in essence was duty, honor, and country. Undoubtedly some will fall by the wayside, but these will be small in number if commissioned officers are diligently taught good principles and if they maintain tried and true traditions in order to assure that future generations will maintain fidelity to the oath they take upon being commissioned an officer of the Armed Forces of the United States of America.
Admiral Arleigh Burke, in a letter to the author, stated:
There are many pressures in this world of ours today which dictate against a solemn and intensive contemplation of the oath an officer takes. But I do think that more attention should be devoted to the indoctrination of young officers especially, of the obligations they as individual officers assume when they recite that oath. 11 is a responsibility that should not be taken easily. And its phraseology is disarmingly simple. When an officer swears to “support and defend the Constitution of the United States against all enemies, foreign and domestic”—he is assuming the most formidable obligation he will ever encounter in his life. Thousands upon thousands of men and women have died to preserve for him the opportunity to take such an oath.
What he is actually doing is pledging his means, his talent, his very life to his country. This is an obligation that falls to relatively few men. And it should be considered as a sacred trust.
We hear much these days about the “rights” to which we are entitled as citizens of this great nation. There is less emotion about the corresponding “duties” which we inherit.
The expressed concern of men like Admiral Burke and General MacArthur when weighed in the light of the reprimand imposed upon an Army lieutenant colonel by his commanding general raised the question: What can be done?
The enemy we fight is seeking not only land but also the minds of men. In peace and in war the American officer will be no better than his training and education. What is needed is a co-ordinated training and educational program for the officers of the Armed Forces of the United States on the meaning and purpose of an officer’s oath.
The educational program should be similar in concept to that known as “The Code of Conduct,” with one additional requirement. Each Service’s school should be required to present a course of instruction during each academic year to all student officers. A requirement of this nature is not unrealistic. For example, the majority of approved law schools of the United States require for graduation the successful completion of a course in “Legal Ethics.”
It is recognized that many years prior to being commissioned most American officers normally will complete educational courses in U. S. history, civics, and perhaps constitutional government. They also may be expected to have pride in country, respect for principles, a sense of right and wrong developed by attendance at church and school and through home instruction. Nevertheless, it is felt that further development after entrance into the military service can do no harm and may do some good.
The training given by the services must be co-ordinated, specific, and uniform. It must be “realistic as well as idealistic. Above all, it must be presented with understanding, skill, and devotion sufficient to implant a conviction of heart, conscience, and mind” that will cause each commissioned officer to accept the responsibilities and duties of his oath.
The officer corps of the Armed Forces of the United States have, expressly and by implication, voluntarily subscribed their oath to support and defend the Constitution; expressed in that others may have heard the individual officer say, or seen his signature to the oath itself, that he will maintain the supremacy and inviolability of the government and the Constitution against forcible overthrow by domestic intrigue or foreign aggression; implied because there is owed to the government by each citizen allegiance which pre-dates any expressed words of promise. The declaration in words is simply what was already a fact of citizenship.
While the acts of Congress have caused different words to be used at different times by the officer corps in swearing to support and defend the Constitution, the original statute remains, in my opinion, unchanged.
The corps of commissioned officers of the Armed Forces of the United States have been and will continue to be bound to their oath; for each officer’s oath is the yardstick of integrity for himself, his family, and America.
The officers of yesterday said and those of today, and tomorrow, come what may will continue to say:
“ . . . I have a duty to perform, and I mean to perform it with fidelity, not without a sense of existing dangers, but not without hope. I have a part to act, not for my own security or safety, for I am clutching for no fragment upon which to float away from the wreck, if wreck there must be, but for the good of the whole, and the preservation of the whole, and there is that which will help keep me to my duty during this struggle, whether the sun and the stars shall appear, or shall not appear for many days.”
The present officer’s oath contains 67 words, some of which—“ . . . foreign and domestic,” “ . . . take this obligation freely, without mental reservation or purpose of evasion ...” “well and faithfully”—come perilously close to verbiage. Would there not be merit in striving for the brevity and clarity of the 16-word oath framed in June 1789, while yet creating an oath that is peculiar to the military; an oath which the fighting man can die for—and live with?
Such an oath might be phrased: “I will do my duty, I will preserve my honor, and I will defend my country and the Constitution thereof.”
Yet, be the oath 20—or 120—words long, an officer has the duty to be familiar with the Constitution to which he has sworn fidelity, for his first allegiance is to the Constitution. A commissioned officer of the Armed Forces of the United States, like his civilian counterpart, is accountable to the law as it is judicially determined to be notwithstanding his standard of “implicit obedience.”
Furthermore, officers of the Armed Forces of the United States must act in compliance with the directives of competent authorities.
Finally, it is incumbent upon the command structure of the U. S. Armed Forces to provide information to its officers to keep them well informed on constitutional matters and to provide fresh, rigorous, and imaginative courses of instruction on the meaning of an officer’s oath during all phases of career schooling.
National preservation will be sustained by adherence to the principles of the Constitution which time has proven to be equal to the changing stresses that have affected the United States.
Let it at least be said of us: .. . above all, they placed country above service and service above self.
Secretary of the Navy, John B. Connally, 1961
1. Lincoln’s Second Inaugural Address, 4 March 1865.
2. Letter to the author from Louis B. Sohn, Bemis Professor of International Law, Law School of Harvard University.